But “[T]he Fourth Amendment does not require officers to use the best technique available as long as their method is reasonable under the circumstances.”
Puskas v. Delaware County, Ohio
No. 22 – 3390
Sixth Circuity Appellate court
January 5, 2023
Around 11:14 a.m. on Wednesday June 6, 2018, Mrs. Deanna Puskas called 911 from her home in Delaware County, Ohio, frantically claiming that her husband, Mr. Brian Puskas, was threatening her and that she feared for her life. She told the 911 dispatcher that when Mr. Puskas came home from work he was “not normal,” was tearing up the house, and was “threatening [her] with guns and knives.” Mrs. Deanna Puskas stated that Puskas had “never acted like this before,” and explained that he had high blood pressure and depression and was on “new medication from the doctor” for “inflammatories.” Mrs. Deanna Puskas also indicated that there were lots of guns and knives in the house, and that Mr. Puskas “threatened to turn [her] into an ashtray.” He also cut open a window screen after she locked him out and he was tossing items across the front yard. During the call, Mrs. Deanna Puskas stated “I know what he’s going to do, he’s going to kill me.”.
Mrs. Deanna Puskas ran to the neighbors’ and hid behind a truck. She told the dispatcher that Puskas had “tremendous guns” in their house. Several officers from the Delaware County Sheriff’s Office and the Sunbury Police Department responded to an incident that dispatch “described as a domestic disturbance involving firearms and knives.” Defendant Deputy Zachary Swick was the first to arrive at 11:25 a.m., knowing that Mr. Puskas had weapons and was “not acting right.” As he drove up, Deputy Swick observed stuff scattered across the lawn and Mr. Puskas holding a rifle. Mr. Puskas put the rifle down before Deputy Swick got out of the cruiser.
Deputy Swick told Mr. Puskas multiple times to put his hands up and to get on the ground. Mr. Puskas walked toward the house instead. He stopped near a tree close to the front door, picked up a bag, and pulled out a shotgun. Deputy Swick, who was about six feet from Mr. Puskas, fled for cover. His body camera fell off in the process. Mr. Puskas told Deputy Swick that he had “better run.” From the safety of his vehicle, Deputy Swick reported to dispatch that Mr. Puskas had a shotgun and that there were other weapons in the yard. Mr. Puskas then dropped the shotgun.
From behind the cruiser, Deputy Swick reengaged with Mr. Puskas, asking “what’s going on,” and broaching the topic of Puskas’s mental state. Officer Keith Brown from the Sunbury Police Department arrived next, at 11:30 a.m. He joined Deputy Swick behind Deputy Swick’s cruiser. Officer Brown also instructed Mr. Puskas to approach, and repeatedly beckoned to Mr. Puskas: “Let’s talk about this, let’s figure out what’s going on”; “Come on partner, come out here and talk to me,” “I understand you’re having a rough day, why don’t we talk about it?”; “I understand, I’ve got plenty of time— plenty of time”; and “Walk out this way partner, come on.” Mr. Puskas did not obey. When the next officer, Sgt. Robert Curren, arrived at 11:32 a.m., he asked dispatch to send a negotiator. Dispatch notified Sgt. Curren that a negotiator was on the way.
More officers arrived, including Defendants Sergeant Robert Spring and Deputy Troy Gibson. Dep. Gibson parked his cruiser on the west side of the residence (Deputy Swick’s was on the east). Dep. Gibson, a canine officer for the Sheriff’s Office, brought his canine partner, Cash, along. Canine Cash is certified as a narcotics and patrol dog. Canine Cash has been his canine partner since 2017. Relevant here is Delaware County Sheriff’s Office Canine Policy, which states that “[t]he canine officer shall, if possible, verbally warn the suspect(s) that if they do not stop, the canine will be released.” The County also has Response to Resistance and Less Lethal Force policies.
Dep. Gibson joined the other officers in trying to persuade Mr. Puskas to engage with them. Dep. Gibson told Mr. Puskas to “come to the sound of my voice, and we won’t have any problems,” and “come out to us and you won’t have any problems.” Dep. Gibson was also preparing Canine Cash “for an apprehension,” repeatedly giving Canine Cash the bite command. Mr. Puskas ignored Dep. Gibson’s commands and continued to meander around the yard picking up various items off the ground, including a t- shirt. When told to drop the shirt, Mr. Puskas tossed it at the officers.
Dep. Gibson released Canine Cash shortly thereafter. Mrs. Deanna Puskas maintains that neither Sgt. Spring nor Dep. Gibson warned Puskas to surrender or that the Canine Cash would be released, and that Puskas did not turn and run until after Dep. Gibson discharged Canine Cash. This is the basis of her first excessive force challenge. The officers maintain that they did not violate the Fourth Amendment because Dep. Gibson did not release Canine Cash until after Mr. Puskas started to run towards the house.
The officers’ differing accounts fuel the debate. Deputy Swick reported to investigating officers that Canine Cash was not released until after Puskas had turned to run towards his residence. Sgt. Spring recounted that Puskas “started to turn as to go back to the residence, [and] I advised Dep. Dep. Gibson to deploy his K-9 partner to apprehend the subject, which Dep. Dep. Gibson did.”.
On the other hand, Dep. Gibson, Canine Cash’s handler and therefore the so-called “trigger finger,” supports Mrs. Deanna Puskas’s version of events:
Q. Now what does he have in his hand? 3:26 we stopped it at. Can you see that he picked something up there?
Q. Can you tell what that is?
A. I believe that is the shirt.
[Plaintiff’s Counsel]: Okay. And start at 3:26. (Video played back.)
“You’re going to get bit. You’re going to get bit if you don’t (inaudible).” “Stellen. Stellen.”
(Video playback stopped.)
Q. So is the dog released at this point, 3:37?
A. Obviously, yes.
Q. Did you identify yourself at that point?
Q. Okay. So he threw the shirt right before you released. Did he have a weapon in his hands?
. . . .
. . .
Q. Okay. So in response to you releasing the dog what did Mr. Puskas do?
A. He ran towards the house.
Q. Okay. And what happened next?
A. He continued running. Canine Cash ran next to him, did not engage him, and he circled around the—whatever, the tree landscaping north of the house . . . .
The camera footage further establishes that Canine Cash initially targeted the t-shirt, not Mr. Puskas. Dep. Gibson refocused Canine Cash on Puskas and followed Canine Cash as Canine Cash followed Mr. Puskas. Deputy Swick and Sgt. Spring followed behind Dep. Gibson and Canine Cash. All had their guns drawn.
Mr. Puskas pivoted away from the house and darted behind the tree near the front door. Dep. Gibson moved to the other side of the tree. Canine Cash still did not bite or apprehend Mr. Puskas. Mr. Puskas then reached down and picked up a black pistol case. Someone yelled, “he’s got a pistol”; Deputy Swick yelled “drop it”; and Sgt. Spring yelled “get off that.” Mr.Puskas pulled out a silver revolver, and the officers shot him at 11:38 a.m. Mr. Puskas fell to the ground.
Deputy Swick kicked the pistol away and secured Mr. Puskas with handcuffs. Mr.Puskas was transported to the hospital. He died there.
Mrs. Deanna Puskas, as administrator of Puskas’s estate, sued Deputy Swick, Dep. Gibson, Sgt. Spring, and Lt. Robert Buttler (aka the “Individual Defendants”) under 42 U.S.C. § 1983, alleging that they used excessive force when they
(1) Deployed Canine Cash and
(2) Shot Puskas.
Mrs. Deanna Puskas alleged that Delaware County was liable under Monell v. Department of Social Services, 436 U.S. 658 (1978), for its lethal force and canine policies, and its failure to train or supervise the canine units. She brought two state claims, as well.
The court granted summary judgment to the Individual Defendants, concluding that the officers did not use excessive force in either instance. The court granted summary judgment on the Monell county policy claim. The court dismissed the state law claims.
Mrs. Deanna Puskas appeals.
Mrs. Deanna Puskas alleges that the officers violated Puskas’s Fourth Amendment rights by first deploying Canine Cash and then shooting Puskas. A seizure is “unreasonable” under the Fourth Amendment if officers used excessive force. Gambrel v. Knox Cnty., 25 F.4th 391, 400 (6th Cir. 2022) (citing Graham v. Connor, 490 U.S. 386, 394–97 (1989)). In deciding whether the force used was excessive, we balance the government’s interests in protecting others (including the police) and curbing crime against a suspect’s right to not to be injured. Id. Three factors are particularly relevant:
(1) “[T]he severity of the crime at issue,”
(2) “[W]hether the suspect pose[d] an immediate threat to the safety of the officers or others,” and
(3) “[W]hether he [wa]s actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396; Gambrel, 25 F.4th at 400.
We do so from the perspective of a reasonable officer at the scene, and not from “the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. And we “view excessive force claims in segments.” Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007) (citations omitted).
Deployment of a well-trained police dog is “[A]mong the various forms of force available to law enforcement, that is a comparatively measured application of force, which ‘does not carry with it a substantial risk of causing death or serious bodily harm.’” Jarvela v. Washtenaw Cnty., 40 F.4th 761, 764 (6th Cir. 2022) (dog bite) (quoting Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988)). But only if it’s reasonable under the circumstances as measured by the Graham factors. See Ashford, 951 F.3d at 801–03; Zuress v. City of Newark, 815 F. App’x 1, 5–6 (6th Cir. 2020). The district court did just that, concluding:
When Canine Cash was released to apprehend Mr. Puskas, the Individual Defendants knew that: Mr. Puskas was suspected of domestic violence, had threatened his wife with “guns and knives,” and had twice wielded firearms in the presence of Deputy Deputy Swick. Mr. Puskas had been acting erratically during his encounter with the Individual Defendants, and they saw that he had ready access to firearms in the yard. Mr. Puskas had refused to surrender and resisted attempts at apprehension even after he was warned that he would be bit if he refused to comply. When Mr. Puskas turned and ran toward his house where the Individual Defendants believed more guns were located, they reasonably believed that he posed an imminent threat to the personal safety of everyone on the scene.
Mrs. Deanna Puskas attempts to chip away at the court’s conclusion by disputing its treatment of the facts. First, she claims that the officers did not warn Puskas before releasing Canine Cash—and Dep. Gibson’s own testimony bolsters her argument. But the video establishes otherwise. Dep. Gibson said, “You’re gonna get bit.” Sgt. Spring also clearly said, “You’re gonna get bit if you don’t …”.
The word “comply” is fairly inaudible but still fairly inferable. See Matthews v. Jones, 35 F.3d 1046, 1048 (6th Cir. 1994) (officers “called out orders for [the suspect] to surrender” and “warned that the dog would be released if he did not” before releasing canine); Robinette, 854 F.2d at 911–12 (same). Scott dictates that the video controls. See Scott, 550 U.S. at 380–81; see also Hayden v. Green, 640 F.3d 150, 152 (6th Cir. 2011) (rejecting the plaintiff’s allegations “to the extent they are clearly contradicted ‘by a videotape capturing the events in question’” (quoting Scott, 550 U.S. at 378)).
Mrs. Deanna Puskas also alleges that Mr. Puskas was not an imminent threat because he did not begin to flee until after the canine was deployed. Again, the camera footage tells a different story, from two perspectives, Dep. Gibson’s and Officer Brown’s body cameras. Admittedly, the videos are not of the highest resolution and some scenes are blurry, but the parties’ movements are discernible. Officer Brown’s body camera provides the clearer picture. It shows Puskas, after tossing the shirt in the officers’ direction, back up, turn and run towards the house, despite the officers’ warnings that he was “gonna get bit.”.
Dep. Gibson’s body camera’s depiction mirrors Officer Brown’s. Dep. Gibson repeatedly asked Mr. Puskas to “come to the sound of my voice,” “come out to us and you won’t get hurt,” and “don’t pick anything up.”. Mr. Puskas had multiple opportunities to comply and refused EVERY time.
Mr. Puskas nonetheless bent down, picked up the shirt, and threw it towards the officers. Both Dep. Gibson and Sgt. Spring warned Mr. Puskas that he was going to get bit. Dep. Gibson held Canine Cash tightly by the collar. Although not pellucid [clear], the video shows Dep. Gibson release his grip on Canine Cash after Mr. Puskas had turned and started to run towards the house. Therefore, the inconsistent accounts by the officers, including the dog’s handler, do not create a genuine issue of material fact for trial. See Scott, 550 U.S. at 380–81; Hayden, 640 F.3d at 154.
Mrs. Deanna Puskas also contends that Canine Cash was “a poorly trained dog that attacked suspects without warning or command,” Ashford, 951 F.3d at 803, because he was not “fully mature” (eighteen months old at the time of the incident rather than two years of age) and had never successfully apprehended an individual. But the record establishes that Dep. Gibson and Canine Cash were an OPOTA (Ohio Police Officer Training Academy) canine team with “at least 240 hours of training” that covered all aspects of dual-purpose police canine training, including apprehensions. And Dep. Gibson performed monthly maintenance training with Canine Cash. Although Canine Cash had never apprehended a fleeing suspect before Puskas, that is because June 6, 2018, was his first deployment. Dep. Gibson testified that Canine Cash never failed to bite or engage a suspect when commanded during training exercises. The record simply does not support the assertion that Canine Cash was a “poorly trained dog.” Ashford, 951 F.3d at 803.
Mrs. Deanna Puskas posits that Deputy Swick or Dep. Gibson should have tased Puskas instead of releasing Canine Cash. She argues that Deputy Swick could have tased Puskas when he was within six feet of Puskas (a taser can fire up to 21 feet). Furthermore, the taser policy in effect encouraged its use. Maybe so. But “[T]he Fourth Amendment does not require officers to use the best technique available as long as their method is reasonable under the circumstances.” Davenport v. Causey, 521 F.3d 544, 552 (6th Cir. 2008) (cleaned up); Ashford, 951 F.3d at 801 (same). Thus, whether using a taser would have been a better technique is not a question that is before us; we are asked only whether the techniques used were reasonable under the circumstances. Deputy Swick testified that he decided not to deploy the taser because there were other, lethal weapons in the yard. And, as noted above, deploying Canine Cash was an accepted police tactic. Furthermore, the video clearly shows that the defendant officers were trying to deescalate the situation by calmly entreating Puskas to come to them. In short, the officers’ decisions here are paradigmatic judgment calls, which we do not second guess. See Graham, 490 U.S. at 396. Thus, as the district court noted, “the decision to forgo tasering for the possibility of nonviolent resolution was far from ‘plainly incompetent.’” We therefore hold that, under the circumstances the officers faced here, the decision to release Canine Cash did not violate the Constitution. Palma v. Johns, 21 – 3315 (6th Cir. February 28, 2022)
“When an officer uses deadly force, that force is unreasonable unless ‘the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’” Palma, 27 F.4th at 432 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). The officers’ use of deadly force is also examined for objective reasonableness, using the Graham factors. Graham, 490 U.S. at 396–97. However, the threat of immediate harm is a “minimum requirement for the use of deadly force.” Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005); see also Palma, 27 F.4th at 432.
The first (severity of the crime) and third (resisting arrest or fleeing) Graham factors support the use of deadly force. Again, the crime was severe—the officers knew that Mr. Puskas had threatened Mrs. Deanna Puskas with weapons and had access to them. Mr. Puskas repeatedly disobeyed the officers’ orders to come to them and to leave everything on the ground, and he attempted to flee to his house, where more weapons were stored.
What Mr. Puskas did next, made the danger to the officers imminent (the second Graham factor). The video footage confirms that as Mr. Puskas was heading towards the house, he pivoted towards the tree, picked up a black case, pulled out a pistol (or revolver), and appeared to draw the gun. At this point, the officers, who were in pursuit of Mr. Puskas, became easy targets—and Mr. Puskas’s prior behavior could reasonably be perceived as raising those odds.
Again, as the district court put it:
The Individual Defendants were dispatched to the scene of a domestic violence call after Mr. Puskas threatened his wife with guns and knives. In the moments leading to the decision to use lethal force, the Individual Defendants knew that Mr. Puskas was acting erratically and had twice wielded firearms in the presence of Deputy Swick. They also knew that there were multiple firearms in the yard and believed there to be more inside the house. Mr. Puskas refused to surrender and instead ran toward his house. With Canine Cash and the Individual Defendants in close pursuit, Mr. Puskas stopped to retrieve a gun case, unzipped it, and drew a silver revolver. At that moment, the Individual Defendants feared for the lives of everyone on [the] scene.
In other words, the “tense, uncertain, and rapidly evolving” circumstances justified the shooting. Graham, 490 U.S. at 397. We do not second guess such split-second decisions. Ryburn v. Huff, 565 U.S. 469, 477 (2012) (per curiam).
Next, Mrs. Deanna Puskas contends that because Mr. Puskas did not “brandish” the silver revolver at the officers, their reaction was unreasonable. It’s true that officers cannot shoot a suspect merely because he has a gun. Campbell, 47 F.4th at 480; Thomas, 854 F.3d at 366. But they do not necessarily need to wait until he points it at them. Thornton, 727 F. App’x at 838; see also Wilkerson v. City of Akron, 906 F.3d 477, 482–83 (6th Cir. 2018) (officers who shot fleeing suspect could have reasonably believed that suspect could turn and fire upon them). Here the officers had other factors that flipped the switch from “unreasonable” to “reasonable.” See Thomas, 854 F.3d at 366 (“Whether a suspect has a weapon constitutes just one consideration in assessing the totality of the circumstances.”). As the district court noted, Mr. Puskas had just threatened to shoot his wife, had the means to carry the threat out, repeatedly disobeyed the officers for over twenty minutes, and was acting erratically. Clearly, there were “additional indicia that the safety of the officer[s] . . . [wa]s at risk.” Campbell, 47 F.4th at 480; cf. Bouggess v. Mattingly, 482 F.3d 886, 890–92 (6th Cir. 2017) (holding that officer who shot suspect for resisting arrest and fleeing was not entitled to qualified immunity where there was no evidence that the suspect had a gun).
Mrs. Deanna Puskas also argues that Canine Cash’s deployment precipitated the deadly shooting, because it caused Mr. Puskas to turn and flee for his safety and pick up a gun case (with a gun inside) along the way. But that argument contradicts the video. In any event, we analyze the dual uses of force separately and “measure the reasonableness of the use of deadly force at a particular time based on an ‘objective assessment of the danger a suspect pose at that moment.’” Mullins v. Cyranek, 805 F.3d 760, 766 (6th Cir. 2015) (quoting Bouggess, 482 F.3d at 889); Bouggess, 482 F.3d at 890 (stating that “[t]he relevant time . . . is the moment immediately preceding the shooting”). “We do not scrutinize whether it was reasonable for the officer ‘to create the circumstances.’” Thomas, 854 F.3d at 365 (citing Livermore, 476 F.3d at 406). Putanother way, “[A] different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.” Thornton, 727 F. App’x at 837 (quoting Los Angeles v. Mendez, — U.S. —, 137 S. Ct. 1539, 1544 (2017)); Goodwin v. Richland Cnty., 832 F. App’x 354, 358 (6th Cir. 2020).
Nor can it be said that Canine Cash’s deployment proximately caused the shooting, because it was not foreseeable that Mr. Puskas would stop to pick up a gun while fleeing from Canine Cash. See Mendez, 137 S. Ct. at 1548–49 (recognizing proximate cause theory and holding that courts must find some direct relation between the injury asserted and the alleged relevant constitutional violation).
Mrs. Deanna Puskas advances another argument for the first time on appeal. Guided by our decision in Palma, she contends that because the officers knew or should have known that Puskas was suffering from mental illness, they should have attempted to deescalate the situation before resorting to deadly force. Because “the Graham factors do not easily map onto cases” where officers are responding “to a medical or mental health emergency” courts must consider additional factors. Palma, 27 F.4th at 429.
These include whether:
(1) “[T]he person was experiencing a mental health or medical emergency, and whether that emergency created ‘an immediate threat of serious harm’ to themselves or others”;
(2) “[S]ome degree of force [was] reasonably necessary to ameliorate the immediate threat”; and
(3) “[T]he force used [was] more than reasonably necessary under the circumstances.” Id. (quoting Estate of Hill by Hill v. Miracle, 853 F.3d 306, 314 (6th Cir. 2017)); see also Roell v. Hamilton Cnty., 870 F.3d 471, 482 (6th Cir. 2017) (holding that officers required to factor in a person’s diminished mental capacity before using force to restrain him).
[T]his case is not like Palma. In Palma, the defendant officer responded to a family dispute over a TV remote. Palma, 27 F.4th at 424 (majority op.). The 911 dispatcher told him that the suspect, Vincent Palma, had mental health issues. Id. Palma was nonresponsive and noncompliant to the officer’s commands and kept walking towards him. Id. at 425. The officer tased Palma and then shot him. We affirmed the denial of qualified immunity. Because the officer knew Palma was mentally ill, he was required to consider Palma’s mental state before using force against him. Id. at 436–37. Thus, the officer acted unreasonably in shooting Palma because he “was not responding to an ongoing crime” and Palma “never physically resisted arrest or tried to flee.” Id. at 428–29, 437.
Here, the officers were responding to a live crime scene, with a noncompliant, erratic, and most important, armed suspect. As the Palma majority recognized, “an officer is not absolutely barred from using lethal force on mentally ill individuals.” Id. at 437 (stating that “only in extreme cases have we found that an officer reasonably used lethal force against a mentally ill person”). Given these additional factors, the officers’ actions were not unreasonable. Id. (collecting cases where officers reasonably “used lethal force against a mentally ill person who was armed and threatening officers”). That is why Mrs. Deanna Puskas’s argument that the officers should have waited for the negotiator is also a nonstarter – Mr. Puskas had a gun in his hand and the situation was “tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397.
Although Sgt. Spring and Deputy Swick both testified that they did not know that Mr. Puskas had mental health issues it is obvious from their comments and commands that Defendants [law enforcement] were aware of, and sensitive to, Mr. Puskas’s precarious mental state. At a minimum, they felt that his behavior was “abnormal” as defined by the Delaware County’s standard operating policy. Puskas himself told Deputy Swick that he was “just not having a good day.” Indeed, Mr. Puskas’s odd behavior made it clear that he was “off.” But, as stated above, this does not transform the officers’ behavior from “reasonable” to “unreasonable” under the circumstances presented here.
Because we conclude that the officers did not violate Mr. Puskas’s constitutional rights, there is no need to address the clearly established prong of the qualified immunity analysis.
Mrs. Deanna Puskas also challenges the district court’s dismissal of her Monell failure-to-train-or- supervise claim and grant of summary judgment as to her county policies claim. An underlying constitutional violation is the sine qua non of municipal liability, which requires that the constitutional violation was caused by a municipal policy or custom. Monell, 436 U.S. at 694; Baker v. City of Trenton, 936 F.3d 523, 535 (6th Cir. 2019); Thomas, 854 F.3d at 367 (“No constitutional violation means no municipal liability.”). As explained above, Mrs. Deanna Puskas has not established any constitutional violation.
The district court properly granted summary judgment to the County.
Information for this article was obtained from Puskas v. Delaware County, Ohio, 22 – 3390.
This case was issued by the Sixth Circuit Appellate Court and is binding in Kentucky, Michigan, Ohio and Tennessee.
The Sixth Circuit Appellate Court made several statements that are instructive and require further analysis:
- “ Deanna Puskas also alleges that Mr. Puskas was not an imminent threat because he did not begin to flee until after the canine was deployed. Again, the camera footage tells a different story.” This case provides another incident that underscores the benefits of body cameras. No report, no eyewitness account could have provided evidence that the officers and deputies actions were objectively reasonable more than the body camera video.
- “But “[T]he Fourth Amendment does not require officers to use the best technique available as long as their method is reasonable under the circumstances.” Davenport v. Causey, 521 F.3d 544, 552 (6th Cir. 2008) (cleaned up); Ashford, 951 F.3d at 801 (same).” Deanna Puskas alleged that law enforcement should have utilized a taser on her presently armed husband who had just threatened to kill her and was now non-compliant with law enforcement. The court provided strong language that law enforcement’s actions must be objectively reasonable … and do not have to utilize a ‘best technique’. This is instructive because it is much easier to identify a best technique from the safe confines of an office or courtroom as opposed to being face-to-face with a mentally unstable armed suspect.
- “Here, the officers were responding to a live crime scene, with a noncompliant, erratic, and most important, armed suspect. As the Palma majority recognized, “an officer is not absolutely barred from using lethal force on mentally ill individuals.” Id. at 437 (stating that “only in extreme cases have we found that an officer reasonably used lethal force against a mentally ill person”). Given these additional factors, the officers’ actions were not unreasonable. Id. (collecting cases where officers reasonably “used lethal force against a mentally ill person who was armed and threatening officers”). That is why Mrs. Deanna Puskas’s argument that the officers should have waited for the negotiator is also a nonstarter – Mr. Puskas had a gun in his hand and the situation was “tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397.”. On February 28, 2022, the Sixth Circuit Appellate Court issued Palma v. Johns, 22 – 3315. In that case the court established a seven-part use of force test (!) when force is applied against a mentally ill person. Deanna Puskas alleged that when law enforcement shot and killed Mr. Puskas it violated the seven-part Palma test. Here, the court dismissed this line of argument because Mr. Puskas was presently armed, threatening and therefore dangerous. Law enforcement still can use deadly force against a mentally ill person, even with the cumbersome seven-part use of force test established in Palma. See The Sixth Circuit Dangerously Limits the way Officers Can Protect Themselves During Dangerous Encounters with a Convoluted Seven-Part Use of Force Test.
- “Nor can it be said that Canine Cash’s deployment proximately caused the shooting, because it was not foreseeable that Puskas would stop to pick up a gun while fleeing from Canine Cash.”. Mrs. Deanna Puskas alleged that Deputy Troy Gibson deployment of Canine Cash was unreasonable because after Canine Cash was deployed Mr. Puskas picked up a firearm. The court affirmed that the deployment of Canine Cash at the time he was deployed was objectively reasonable.
- All the responding officers and deputies to the Puskas home on Wednesday June 6, 2018, should be HIGHLY commended – Canine Cash too! These professionals responded in an objectively reasonable manner with a mentally unstable, presently armed, and dangerous suspect. Law enforcement provided him multiple opportunities to comply, he did not and was reasonably shot and killed.
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